Boris Ignachkov Legal Principles and Key Points
- In the case of Gregg v Scott 2005 2 ac 176 it was held that liability for the loss of a chance of a more favourable outcome should not be introduced into clinical negligence claims.
Facts of the Case
- The appellant (G) appealed against a decision that his medical negligence claim against the defendant doctor (S) failed.
- G had visited S because he had a lump under his arm.
- S negligently misdiagnosed G’s condition benign.
- A year later another general practitioner referred G to hospital for an examination and it was discovered that G had cancer of lymph gland.
- By that time the tumour had spread to G’s chest.
- G suffered pain and had to undergo a course of chemotherapy.
- He was left with poor prospects of survival.
- G sued S, alleging that S should have referred him to hospital and that if S had done so, his condition would have been diagnosed earlier and there would have been a high likelihood of a cure.
- The judge held that on the expert evidence, the delay in diagnosis had reduced G’s chances of surviving for more than 10 years from 42% to 25%. Therefore, he dismissed G’s action because the delay had not deprived G of the prospect of a cure, meaning surviving more than 10 years, because, at the time of his misdiagnoses, G had less than 50% chance of surviving more than 10 years anyway.
- The Court of Appeal dismissed G’s appeal.
- G appealed to the House of Lords.
Issues in Gregg v Scott 2005 2 ac 176
- Could G successfully argue that loss of chance recovery is either a consequential loss derived from physical injury or a compensable head of damage itself.
Held by House of Lords
- Appeal dismissed
Lord Hoffman
- Held that even if the quantification of future losses was conventionally decided on the evaluation of risks and chances, G had to show that the loss was consequential on injury caused by S’s negligence. Causation had to be shown on the balance of probabilities. On the judge’s findings it had not been shown that on the balance of probabilities the delay in commencing G’s treatment that was attributable to S’s negligence had affected the course of his illness or his prospects of survival, which had never been as good as even.
“Much of the discussion in the cases and literature has centred round cases where the adverse outcome has already happened. The patient has lost his leg. Did the doctor’s negligence cause him to lose the leg? If not, did it reduce the chances of saving the leg? But in this case the most serious of the adverse outcomes has not yet happened, and (it is to be hoped) may never happen. The approach to causation should be the same for both past and future events. What, if anything, has the doctor’s negligence caused in this case? We certainly do not know whether it has caused this outcome, because happily Mr Gregg has survived each of the significant milestones along the way. Can we even say that it reduced the chances of a successful outcome, given that Mr Gregg has turned out to be one of the successful minority at each milestone? This is quite different from the situation in Hotson, where the avascular necrosis had already happened, or in Rufo v Hosking, where the fractures had already happened. Mr Gregg faced a risk of an adverse outcome which happily has not so far materialised, serious though the effects of his illness, treatment and prognosis have been. The complexities of attempting to introduce liability for the loss of a chance of a more favourable outcome in personal injury claims have driven me, not without regret, to conclude that it should not be done. As already indicated (paras 206 and 207 earlier) the claimant would have been entitled to damages for any adverse outcomes which were caused by the doctor’s negligence. But the possibilities there canvassed were not canvassed in evidence or argument before the Judge, nor have we been invited to remit the case for further findings. With some regret, therefore, I agree that this appeal should be dismissed. para227